Controls independent of suspicion
Definition and legal classification
Controls independent of suspicion refer to government control measures carried out without any specific suspicion against a particular person. They serve to prevent danger, maintain public security, and prevent or detect crimes or administrative offenses. In contrast to targeted controls, which require a specific suspicion, controls independent of suspicion are based solely on general statutory provisions.
The legal foundations for such controls are found in various federal and state laws. Particularly relevant are the respective state police laws, the Federal Police Act (BPolG), the Customs Investigation Service Act (ZFdG), and the Residence Act (AufenthG). Controls independent of suspicion are also carried out in the context of the Road Traffic Regulations (StVO) and other special legal provisions.
Legal foundations
Federal Police Act (BPolG)
A central legal basis is § 22 (1a) BPolG. This provision allows the Federal Police to check persons within up to 30 kilometers of the border with other countries, as well as at railway facilities of police significance, to prevent illegal entry or to clarify or prevent crimes related to border crossing. For such controls, no specific suspicion is required; rather, statutory authorization is sufficient.
State Police Laws
The individual state police laws also contain provisions regarding controls independent of suspicion. An example of this is § 12a of the Lower Saxony Police and Regulatory Authorities Act (NPOG), which allows for controls independent of suspicion at certain locations or times, serving to prevent danger and the commission of crimes.
Customs Investigation Service Act (ZFdG)
For customs, § 10 ZFdG provides the possibility to carry out controls without specific suspicion, particularly to combat illegal employment or tax offenses. These include both checks at motorway service areas and random vehicle inspections as part of customs investigations.
Residence Act (AufenthG)
According to § 71 (1) sentence 1 AufenthG, authorities are authorized to carry out controls independent of suspicion to monitor compliance with residence regulations, particularly in the context of workplace inspections to check the employment of foreign nationals.
Requirements and limits
Rule-of-law requirements
The conduct of controls independent of suspicion is subject to the reservation of law. This means that a sufficiently clear and specific statutory basis is required. An essential prerequisite is that the legislature sufficiently limits and proportionately exercises any interference with fundamental rights, particularly the general right of personality under Article 2 (1) in conjunction with Article 1 (1) of the Basic Law and the right to informational self-determination.
Principle of proportionality
Each measure must comply with the principle of proportionality. This means it must be suitable, necessary, and appropriate to achieve the legally defined purpose. Controls may not be carried out indiscriminately or nationwide, but only within a defined framework, for example, at known crime hotspots, near borders, or in specific preventive situations.
Principle of legal certainty
The relevant legal provisions must be defined clearly enough so that both the individuals affected and the authorities can recognize when and to what extent controls may be carried out. Insufficiently specific regulations could violate the principle of legal certainty under Article 20 (3) of the Basic Law.
Protection of fundamental rights and restriction of personal freedom
Controls independent of suspicion constitute significant intrusions on fundamental rights. In particular, personal liberty (Art. 2 (2) GG), the right to freedom of movement (Art. 11 GG), and the principle of equality (Art. 3 GG) are affected.
Federal Constitutional Court case law
The Federal Constitutional Court (BVerfG) has recognized the admissibility of controls independent of suspicion provided that they are clearly regulated by statute and proportionately structured (BVerfGE 115, 320 as well as BVerfG, Judgment of 18 April 2023 – 1 BvR 1183/17). The courts attach particular importance to ensuring that these measures are not implemented indiscriminately, permanently, or in a discriminatory manner.
Prohibition of discrimination
According to Article 3 of the Basic Law, selecting persons for control based on racist, ethnic, or otherwise discriminatory characteristics is legally impermissible (‘racial profiling’). The practice of control must be justified by legal and factual grounds.
Typical areas of application
Railway and border police
A large number of controls independent of suspicion occur in the field of railway and border police. Their purpose is to secure external borders, prevent illegal migration, and control cross-border smuggling.
Road traffic
Road traffic authorities also carry out controls independent of suspicion, for example to check fitness to drive in the context of general traffic checks pursuant to § 36 StVO.
Occupational safety and customs
In the field of occupational safety and combating illegal employment, customs and control authorities also carry out controls independent of suspicion, for example to prevent undeclared work.
Legal consequences in case of refusal to cooperate
Anyone who resists a lawfully ordered control independent of suspicion must expect administrative fines, monetary fines, or—in individual cases—immediate enforcement measures. The legality of each intervention can, in principle, be reviewed by a court.
Controversy and criticism
Human rights organizations and data protection officers, in particular, criticize the increasingly extensive practice of controls independent of suspicion because they entail the risk of government arbitrariness and discrimination. The discussion focuses on maintaining proportionality and protection against unjustified encroachments on fundamental rights.
Summary
Controls independent of suspicion are statutorily regulated control measures that do not require a specific suspicion against a person. They rely on strict statutory bases and the principle of proportionality, as they represent significant intrusions into constitutional fundamental rights and personal liberty. The main focus is always on legally certain and non-discriminatory application and on the possibility of judicial review of the measures. Despite ongoing criticism, such controls are an established part of the German security framework, whose use and limits are largely established by laws and case law.
Frequently Asked Questions
What legal provisions regulate controls independent of suspicion in Germany?
Controls independent of suspicion in Germany are mainly regulated by the Federal Police Act (BPolG), especially §§ 22 and 23 BPolG. The Residence Act (§ 48 AufenthG) and in part also state police laws contain corresponding legal authorizations. In border areas, particularly at Schengen internal borders and in zones near the border (up to 30 km from the border), police officers are allowed to check persons without concrete initial suspicion. The main goal is to prevent and combat illegal migration and cross-border crime. However, the measures are subject to the so-called principle of proportionality and require a necessity assessment. In addition, a sufficiently specific statutory basis must exist, and controls must be carried out openly and not arbitrarily. Furthermore, European law requirements, especially the Schengen Borders Code, influence national legal interpretation.
What rights do affected persons have during a control independent of suspicion?
Persons affected by a control independent of suspicion have various rights derived from the Basic Law, particularly the general right of personality (Art. 2 (1) in conjunction with Art. 1 (1) GG), as well as specific statutory provisions. These include the right to be informed about the reason for the control and to know the identities of the officers conducting the control. In addition, control measures may only be carried out to the extent necessary to establish identity or achieve the purpose of the control. The persons affected have the right not to incriminate themselves (nemo tenetur). Furthermore, in the case of actions such as searches, they may request the presence of witnesses (§ 104 StPO applies accordingly). In cases of excessive or discriminatory control, it is possible to subsequently file legal remedies such as a supervisory complaint or objection.
How is a control independent of suspicion distinguished from a control based on suspicion?
A control based on suspicion requires a concrete initial suspicion of a criminal or administrative offense, justifying the measure. The legal basis here is, in particular, § 163b StPO (verification of identity) or § 102 StPO (search in case of suspicion). In contrast, a control independent of suspicion is carried out solely on the basis of statutory authorization and without specific suspicion against the person in question. Controls independent of suspicion often serve preventive purposes and take place in particular at certain locations (e.g., border areas, railway stations, airports). The decisive factor for legality is a sufficient and proportionate legal basis, while suspicion-based controls are initiated due to a specific situation or the behavior of the person.
Which courts have ruled on the admissibility of controls independent of suspicion so far?
The legality of controls independent of suspicion has repeatedly been examined by administrative courts as well as by the Federal Constitutional Court. Especially relevant is the decision of the Federal Constitutional Court dated April 4, 2006 (1 BvR 518/02), in which the BPolG regarding identity checks independent of suspicion was declared generally constitutional, provided there is a clear statutory regulation and consistent review of proportionality. The European Court of Human Rights (ECHR) has also addressed issues of discrimination in connection with identity checks and emphasized that police measures must not be based on external characteristics such as skin color. Higher administrative courts and the Federal Administrative Court regularly deal with individual cases regarding the interpretation and limitation of police discretionary powers.
Are there restrictions on controls independent of suspicion with regard to the principle of equality?
Yes, police measures in the context of controls independent of suspicion are subject to the requirements of Article 3 of the Basic Law (principle of equality). The selection of persons to be checked must not be arbitrary or solely based on external characteristics such as skin color or presumed origin (keyword: racial profiling). This has been made clear particularly through decisions by administrative and constitutional courts. The police must act according to objective criteria and regularly document and evaluate the use of such measures to avoid discrimination. The Federal Police Act also explicitly provides that no discrimination may occur during controls and any appearance of arbitrariness is to be avoided. The subsequent review of measures is an integral part of legal oversight.
What legal remedies are available against a control independent of suspicion?
Affected persons have various ways to challenge unlawful controls independent of suspicion. In the event of disproportionate conduct, a supervisory complaint or specialist supervisory complaint can be submitted against the measure itself. After completion of the control, it is possible to file a lawsuit to establish the unlawfulness of the identity check or any associated coercive measures in the administrative court pursuant to § 113 (1) sentence 4 VwGO (“declaratory action after completion”). Prerequisites for this are that the intervention has already ended and there is a risk of repetition or an interest in rehabilitation. In cases of alleged violations of fundamental rights, especially equality rights or the right to informational self-determination, a constitutional complaint can also be filed with the Federal Constitutional Court.
Are there statutory documentation requirements for controls independent of suspicion?
Police task forces are obliged to comprehensively document each individual control independent of suspicion. This follows from both state and federal law requirements as well as internal police guidelines. Documentation serves traceability, preservation of evidence, and, if necessary, judicial review. As a rule, it includes information regarding the location, time, purpose, participating officers, controlled persons, and the conduct of the measure. The quality and detail of the documentation requirement vary depending on the federal state and operational context, but always follow the principle of administrative transparency and serve to protect the rights of those affected, especially in the event of subsequent complaints or court proceedings.
To what extent are controls independent of suspicion compatible with data protection?
The execution of controls independent of suspicion and the associated collection of personal data are subject to the requirements of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) or the respective state data protection laws. The data collected may only be stored and processed for the legally intended purpose. After completion of the control and elimination of the purpose, the data must as a rule be deleted, unless other legal retention obligations exist. Those affected have comprehensive rights to information regarding the data stored about them and may request its correction or deletion. Violations of data protection requirements may be sanctioned and also give rise to claims for damages under the GDPR.
